View Poll Results: Is a model release a contract?
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Thread: Is a model release a contract?
01-17-2013, 12:02 AM #1
Is a model release a contract?
Must an individual get something in exchange in order for a model release to be valid? Yes or No?
dammit, I meant to make this a poll...can a mod fix that?
Last edited by sk66; 01-17-2013 at 12:04 AM.
01-17-2013, 12:43 AM #2
I'll go with "no".
If the answer were yes, then it seems like we'd get into all kinds of more entanglements like how quickly, value, duration. This would make the release form contingent on at least one (if not multiple) external legal artifacts.Dave.
It's not even about the pictures; it's about the memories and communication.
01-17-2013, 12:10 PM #3
Yeah, although I do have some experience in civil law, I'd say no, it's not considered a contract, and neither part has to "receive" anything for it to be valid. A lawyer would be more apt to call it a waiver, that acknowledges that the photographer has ownership and control of the images produced from a specific photo session.
01-17-2013, 01:26 PM #4dPS Forum Member
- Join Date
- Jan 2008
i don't believe that a model release has to give the model anything. its more of an explanation of the what can and cant be done with an image.
01-17-2013, 02:18 PM #5
01-17-2013, 03:00 PM #6
01-17-2013, 11:42 PM #7
The answer to this one is YES. A model release is a contract and the model must get something in return.
References: Dan Heller, ASMP, CA State Code, Legal white paper titled "substantive law behind model releases."
From the white paper:
"VI. Model Releases and Contract Concerns
A. Bargained-For Consideration
Typically, and traditionally, consideration is required for contract enforceability. Under the "bargain theory of consideration", for an agreement to be enforceable as a contract, two requirements must be met:
i. a bargain between the parties; and
ii. an exchange.
a.) give (or promise to give) a return benefit, or
b.) take on (or promise to take on) a detriment.
In order for a model release to be enforceable, the party seeking to uphold the release must have given consideration. Consideration in the context of model releases often refers to a sum of money paid to the model and/or prints to be made of the photos for the model. "Although courts do not ordinarily inquire into the adequacy of consideration, if the consideration is given as a mere pretense, joke, or sham, it will not suffice." R. Kelso, Supplementary Material for Contracts I, p. 12, (1994)."
There can be significant exceptions to the general requirement of consideration. For example, New York has specific statutes addressing model releases and the right of privacy. These statutes require no more than "written consent" for a waiver of an individual's right of privacy to be valid. Therefore, this issue should be considered on a jurisdictional basis before executing a release without consideration."
Note the exception for NY where they have a separate law re: model releases. Also note the part about how the consideration given cannot be just "a pretense."
California Civil code 1542 does the opposite: it adds state code to affirm that there must be an exchange. Quoted here:
"A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must
have materially affected his or her settlement with the debtor."
Again, saying there must be an exchange and it cannot be a pretense.
A model release does not have to "state" that an exchange has been made, but most references say it should (Heller/ASMP).
Most "official/legal" model releases I could find include verbiage similar to "for consideration received" and leave it vague.
And a model release doesn't even have to be in writing (in ~half of the states), but most would say it should.
In states where a model release does not have to be written, it can be "inferred."
For example you put an add out to hire models for a project. In the add it states "for national advertising campaign." By answering the add, and posing for the shoot, the model has granted a release for use of the images in the advertising campaign....I'd still get it in writing.
Another note, model releases do not expire. However, if it is for a minor the individual can rescind the release once they become of legal age.
BTW, when you sign up with facebook you agree to be bound by California law but specifically wave state code 1542....hmmm......
01-22-2013, 02:11 PM #8I'm new here!
- Join Date
- Jan 2013
To stray a bit off the original question, if you are hired to do a job what would that be called? Would it be considered "work for hire" or something else? I want to find information to bring with me to my lawyer to help with what I want added into the contracts for individuals. "The Law (IN PLAIN ENGLISH) Photographers" by Leonard D. Dubuff, was recommended earlier and I have ordered it , but I was wondering if there are any other books or sites that have general outlines for terms. Everyone has their own specifics that they stipulate, but would there be anything that is considered standard? I go next week for drafting the contract, but I didn't think to ask if they are expecting me to know all the details and they will just write it up and word it correctly, or if they will know what to put down and I just say yay or nay to certain parts. Thank you.
01-26-2013, 03:59 AM #9dPS Forum Member
- Join Date
- Jan 2012
- Tacoma WA
Thanks for that insight sk.
I always figured a model release was a contract. It's something I've signed and was bound to in the past as a model. Dealt with a crappy agent who really didn't work to get us paid.
01-26-2013, 03:18 PM #10
Also of note, in some countries a photographer does not own the rights to the pictures from a personal photo shoot. I.e. a family portrait or wedding session is treated as work for hire. Australia terms this as "for personal or domestic use" and the copyright is owned by the individual commissioning the work. (unless they sign away those rights)